NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3075
MICHAEL AKERS,
Petitioner,
v.
DEPARTMENT OF THE TREASURY,
Respondent.
__________________________
DECIDED: May 3, 2006
__________________________
Before MICHEL, Chief Judge, NEWMAN, and MAYER, Circuit Judges.
PER CURIAM.
Michael Akers appeals the final decision of the Merit Systems Protection Board,
affirming his removal from the Department of the Treasury. Akers v. Dep’t of the
Treasury, 100 M.S.P.R. 270 (2005). We affirm.
We must affirm the board’s decision unless it was arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; obtained without procedures
required by law, rule or regulation having been followed; or unsupported by substantial
evidence. See 5 U.S.C. § 7703(c) (2000). Akers admits that he failed to report income
earned by painting houses on his federal income tax filings for 1999 and 2000.
Because he distributed flyers and solicited customers, substantial evidence supports the
board’s conclusion that the unreported income derived from an outside business
activity, not a hobby. Therefore, in light of the board’s credibility determinations, the
length of Akers’ service at the Internal Revenue Service (“IRS”), and department
briefings concerning his obligations to report outside business activities and outside
income, the board properly found that he willfully understated his individual income tax
liability, in violation of section 1203(d)(9) of the IRS Restructuring and Reform Act of
1998 (“RRA”), Pub. L. No. 105-206, tit. I, § 1203, 112 Stat. 685, 720-21 (codified at 26
U.S.C. § 7804). In view of his violation and the IRS Commissioner’s finding that
removal was appropriate, the department was required to remove him. See James v.
Tablerion, 363 F.3d 1352, 1359 (Fed. Cir. 2004); see also RRA § 1203(c)(3). As such,
the board properly affirmed Akers’ removal.
06-3075 2